Hacking away at the First Amendment

If this report is accurate, then this ruling by Judge T.S. Ellis, III of the U.S. District Court of Eastern Virginia, is a significant reduction of freedom of speech and press in the U.S.

In a momentous expansion of the government's authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.

Judge Ellis himself seems uneasy with the outcome.

In the end, it must be said that this is a hard case, and not solely because the parties' positions and arguments are both substantial and complex. It is also a hard case because it requires an evaluation of whether Congress has violated our Constitution's most sacred values, enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our nation's security. The conclusion here is that the balance struck by § 793 between these competing interests is constitutionally permissible because (1) it limits the breadth of the term "related to the national defense" to matters closely held by the government for the legitimate reason that their disclosure could threaten our collective security; and (2) it imposes rigorous scienter requirements as a condition for finding criminal liability.

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States' military and foreign policy establishments, and in the importance of our nation's foreign policy decision making. Finally,... mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication. These changes should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations [emphasis added and citations omitted].

[Via Dave Farber's IP list]

A False Sense of Insecurity

This is [almost] the name of a short paper written some two years ago by John Mueller, who holds the Woody Hayes Chair of National Security Studies at the Mershon Center of Ohio State University. On Tuesday, it was noted on Dave Farber's IP list as a paper that Bruce Schneier had called "interesting" on Monday. I call it outstanding.

[T]here is a perspective on terrorism that has been very substantially ignored. It can be summarized, somewhat crudely, as follows:
• Assessed in broad but reasonable context, terrorism generally does not do much damage.
• The costs of terrorism very often are the result of hasty, ill-considered, and overwrought reactions....

[T]he number of people worldwide who die as a result of international terrorism is generally only a few hundred a year, tiny compared to the numbers who die in most civil wars or from automobile accidents. In fact, in almost all years, the total number of people worldwide who die at the hands of international terrorists anywhere in the world is not much more than the number who drown in bathtubs in the United States.

Until 2001, far fewer Americans were killed in any grouping of years by all forms of international terrorism than were killed by lightning, and almost none of those terrorist deaths occurred within the United States itself. Even with the September 11 attacks included in the count, the number of Americans killed by international terrorism since the late 1960s (which is when the State Department began counting) is about the same as the number of Americans killed over the same period by lightning, accident-causing deer, or severe allergic reaction to peanuts....

Frantz Fanon, the 20th century revolutionary, contended that "the aim of terrorism is to terrify." If that is so, terrorists can be defeated simply by not becoming terrified — that is, anything that enhances fear effectively gives in to them....

What is needed, as one statistician suggests, is some sort of convincing, coherent, informed, and nuanced answer to a central question: "How worried should I be?" Instead, the message the nation has received so far is, as a Homeland Security official put (or caricatured) it, "Be scared; be very, very scared — but go on with your lives." Such messages have led many people to develop what Leif Wenar of the University of Sheffield has aptly labeled "a false sense of insecurity."

I was horrified for days after September 11. I had some feelings of concern for the kind of world my grandson was born into on nine days later. But I very quickly came to the conclusion that the actual risks were low, that the costs that society was (and continues) paying are much too high and that most of our politicians are playing directly into the hands of terrorists. On September 11, 2002 I even announced to several members of my family and to some close friends that Al Qaeda couldn't be much of a threat since a whole year had gone by with no further acts of terror from them.

Yes, there have been horrific and deplorable acts of terrorism in the following four years. Just yesterday came the news of a foiled plot to simultaneously blow up 10 planes over the North Atlantic. Somehow I expect to learn in the weeks ahead though that the threat was not what it's been made out to be.

11 Aug 2006 17:22 Eastern time UPDATE:

Regarding the plausibility of the North Atlantic airline plot, see this, this and this from Dave Farber's IP list.

11 Aug 2006 17:27 Eastern time UPDATE:

And this article from the Washington Post. My expectations are being dashed.

Land of the free and home of the brave

Words can't convey how sick I feel upon reading this article from the New York Times:

A C.I.A. contractor broke both the agency's rules and the law when he used a two-foot-long metal flashlight to beat an Afghan man [named Abdul Wali] who later died, a prosecutor said Monday at the federal trial of the first American civilian charged with mistreating a detainee in Iraq or Afghanistan.

But lawyers for the defendant, David A. Passaro, a onetime Special Forces medic, said he had been a frustrated but concerned interrogator who never hit the man and who checked daily on his condition.

"Dave is guilty only of trying to serve his country," said Joe Gilbert, Mr. Passaro’s public defender. "He’s not guilty."

I sincerely hope Mr Gilbert is right, and that Mr Passaro is not guilty in every sense. One reason this story sickens me so is that it has become far too easy to believe that he actually is guilty and that this case is just one of many.

One prosecutor, Pat Sullivan, said Mr. Wali was chained to the floor and wall of a cell as Mr. Passaro kicked him and struck him with the flashlight and his fists. Once, he said, Mr. Passaro kicked his captive in the groin, having lined up like a football place-kicker. Mr. Passaro's fingerprints were on batteries from the flashlight, said Mr. Sullivan, adding that photographs to be shown the jury would detail the extent of Mr. Wali's injuries.

Other versions of the story allege that Mr Wali begged to be shot to be put out of his pain.

[Thanks to today's Capitol Hill Blue.]

U.S. Patent Office reform?

It's beginning to look like we might get some meaningful and long-overdue reform of the Patent Office [thanks to Michael Geist's Internet Law News].

The U.S. patent system could be inching closer to an overhaul long desired by the technology industry.

Just before departing for their summer recess on Thursday, Utah Republican Orrin Hatch and Vermont Democrat Patrick Leahy, who serve as chairmen of the U.S. Senate's intellectual-property panel, introduced a 45-page bill that proposes a number of changes to the way American patents are awarded and challenged....

Called the Patent Reform Act of 2006, the measure followed two years of hearings, meetings and debate, the senators said. It bears a number of similarities to a bill offered last summer by Texas Republican Lamar Smith in the House of Representatives.

Specifically, it would shift to a "first to file" method of awarding patents, which is already used in most foreign countries, instead of the existing "first to invent" standard, which has been criticized as complicated to prove....

The bill would also establish a "postgrant opposition" system that would allow outsiders to dispute the validity of a patent before a board of administrative judges within the Patent Office, rather than in the traditional court system. The idea behind such a proceeding... is to stave off excessive litigation....

In addition, the Hatch-Leahy bill would place new restrictions on the courts where patent cases could be filed—an attempt at rooting out "forum shopping" for districts known for favorable judges. It would also curb the amount of damages for winners of infringement suits. Perhaps most notably... courts would have to calculate the royalties owed by infringers based solely on the economic value of the "novel and nonobvious features" covered by the disputed patent, not on the value of the product as a whole....

In case anyone needs to be persuaded that there are serious problems with the current system, I offer Patent #6,368,227 ("A method of swing [sic] on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other") granted to a 5-year-old Minnesotan on 9 April 2002.

Did AOL publish your personal information?

Dave Farber's IP list has a message today quoting Adam D'Angelo, who has information about AOL publishing the search logs of half a million of their users.

AOL just released the logs of all searches done by 500,000 of their users over the course of three months earlier this year. That means that if you happened to be randomly chosen as one of these users, everything you searched for from March to May (2006) is now public information on the internet.

This was not a leak - it was intentional....

Update: Seems like AOL took it down. There are some mirrors of the
data in the comments of the digg story, linked below. I estimate about
1000 people have the file, so it's definitely going to be circulated
around.

As a follow-up, someone who wishes to remain anonymous made an alarming discovery.

A search for an SSN shaped regex on the full AOL search data returns a 191 results including repeat searches. Many of these have full names, and at least a dozen include either an addresses, drivers license number, date of birth or some combination of the three in the same query. There's no telling how much more information an aggregation of other queries by those same user ID would yield.

As I understand this, if any of these half million AOL subscribers searched for personal information about me during the months of March, April and May this year, the queries they used are now available to anyone with Internet access, even though AOL has had second thoughts and removed access from their site.

7 Aug 2006 16:23 Eastern time UPDATE:

The latest from the IP list is that AOL has apologized:

"This was a screw-up, and we're angry and upset about it. It was an innocent enough attempt to reach out to the academic community with new research tools, but it was obviously not appropriately vetted, and if it had been, it would have been stopped in an instant," AOL, a unit of Time Warner, said in a statement. "Although there was no personally identifiable data linked to these accounts, we're absolutely not defending this. It was a mistake, and we apologize. We've launched an internal investigation into what happened, and we are taking steps to ensure that this type of thing never happens again."

8 Aug 2006 11:15 Eastern time UPDATE:

With some concern for the ethics of doing so, I invite you to take a look at some specific searches performed by AOL users and imagine what it would feel like to have your searches on display here [via Declan McCullagh's Politech list].

9 Aug 2006 13:15 Eastern time UPDATE:

The New York Times was able to determine the identity of searcher #4417749—a 62-year-old widow from Lilburn, Georgia—obtain her picture and interview her [thanks to Michael Geist's Internet Law News].